An important step for designated employers to ensure compliance with their affirmative action obligations under the Employment Equity Act, 1998 (as amended) (EEA) and the newly enacted Employment Equity Regulations, 2025 (General Administrative EE Regulations) is the preparation and implementation of their employment equity plan (EE Plan).

Period of the EE Plan and timing

In terms of section 20(1) of the EEA, all designated employers must prepare and implement an EE Plan which will achieve reasonable progress towards employment equity in all occupational levels in the employer’s workforce.

While section 20(2)(e) of the EEA provides that the duration of a designated employer’s EE Plan may not be shorter than one year or longer than five years, the General Administrative EE Regulations state that the EE Plan’s duration must be five years, from 1 September 2025 to 31 August 2030 (there is some debate as to whether this requirement for the EE Plan to be a five-year plan is indeed so).

As indicated, in terms of section 20(2)(e) of the EEA, the EE Plan may be shorter than five years, and this section has not been amended. Our considered view is that it remains open to designated employers to have an EE Plan that is shorter than five years, but we caution that there will then need to be careful alignment with the five-year sectoral targets in the employer’s subsequent plan/s. Further, if an employer becomes a designated employer after 1 April 2025, its EE Plan may be shorter, as the employer must prepare an EE Plan for the remainder of the period until 31 August 2030.

The prescribed commencement date of the EE Plan must be 1 September 2025. Designated employers will therefore need to work timeously to ensure that a draft EE Plan is prepared well in advance, to allow sufficient time for the analysis to be conducted in accordance with the EEA12 form (which informs the contents of the EE plan) and for consultation on the EE Plan with employee representatives, as required by section 16 of the EEA. 

Our suggestion is that EEA1 forms (used to collect the information necessary for the workforce profile) should be collected during May and that employers prepare the draft barrier analysis by early June 2025. Designated employers would then use June to consult with employee representatives on the contents of the analysis and aim to finalise the analysis at the end of June 2025.

The new draft EE Plan should be prepared in parallel with this and designated employers should aim to have a draft EE Plan ready for consultation by early July. Consultations with employee representatives on the EE Plan would then take place during July and August 2025, so that a finalised plan is in place by the end of August 2025.

Contents of the plan

The EE Plan must incorporate all of the elements contained in the EEA13 form (annexed to the General Administrative EE Regulations), including the following:

• the objectives for each year of the plan;
• the affirmative action measures to be implemented as required by section 15(2) of the EEA;
• where there is under-representation, the numerical goals to achieve equitable representation of suitably qualified people from designated groups within each occupational level, the timetable to do so and strategies to achieve these goals;
• a timetable for each year of the plan on both numerical and non-numerical goals;
• the duration of the plan;
• the procedures to monitor and evaluate implementation of the plan, including procedures to monitor reasonable progress towards employment equity;
• the internal procedures to resolve disputes regarding the implementation of the plan;
• the senior manager and other persons responsible for the monitoring and implementation of the plan; and
• any other measure that is consistent with the purposes of the EEA.

Objectives for the EE Plan must be SMART – specific, measurable, attainable, relevant and time-bound.

When it comes to the affirmative action measures, these will be informed by the barrier analysis and must include:

• measures to identify and eliminate employment barriers, including unfair discrimination that adversely affects people from designated groups;
• measures designed to further diversity in the workplace based on equal dignity and respect of all people;
• making reasonable accommodation for people from designated groups in order to ensure that they enjoy equal opportunities and are equitably represented;
• measures to ensure equitable representation of suitably-qualified people from designated groups; and
• measures to ensure that people from designated groups are retained and developed, and to implement appropriate training measures, including measures for skills development.

These measures exclude quotas and absolute barriers and must include both numerical and non-numerical measures. As an example, some non-numerical measures that could be taken to improve the representivity of the pool of potential candidates from designated groups could include bursaries, vacation programmes, or graduate programmes, training programmes as well as programmes aimed at the development of women or special measures to facilitate the appointment of people with disabilities.

It is advisable to include sufficient details of these non-numerical affirmative action measures in the EE Plan. Ultimately, these measures are aimed at improving the pool of suitably qualified candidates and can go a long way in ensuring sustainable and genuine transformation of the workforce.

The affirmative action measures that are referred to in the EE Plan must be aligned to those indicated in the analysis undertaken in line with the EEA12 form. The new EEA13 form requires designated employers to specify in their EE Plan any applicable SETA classification and bargaining council, and business type, which was previously only required for the report.

Numerical goals and incorporation of the sector targets

The numerical goals set by an employer in its EE Plan must now comply with the newly published final sectoral targets. When setting goals, the employer must also take into account its workforce profile and the applicable economically active population (EAP). The EEA13 form requires employers to specify, upfront on the EEA13 template, whether the national or provincial EAP has been referred to when setting numerical goals and targets.

It should be noted that the sector targets have been set broadly for males and females, respectively, from designated groups. Designated employers will need to conduct a mathematical exercise to extrapolate these targets into the various race groups, in proportion to the applicable EAP, to set their targets. 

The sector targets have only been set for the top four occupational levels in the workplace, and the employer will need to set its own goals for the remaining occupational levels (ie semi-skilled and unskilled) with reference to the applicable EAP and any other appropriate factors. Employers can be guided by the EEA9 form when it comes differentiating among the various occupational levels.

In addition to the workforce profile, sector targets and EAP, employers may also take into account the following factors when setting targets:

• the inherent requirements of a particular job;
• the pool of suitably qualified persons;
• the formal qualifications, prior learning, relevant experience or capacity to acquire within a reasonable time, the ability to do the job;
• the rate of turnover and natural attrition within the workplace; and
• recruitment and promotional trends within the workplace.

If any of these factors is taken into account in setting targets for specific occupational levels, it is advisable to include sufficient detail regarding this in the EE Plan, and to retain supporting documents evidencing these factors.

In addition, in light of the decision of the Constitutional Court in Correctional Services, it is advisable to include a provision in the EE Plan to the effect that the goals and targets in the EE Plan are not quotas and that they do not amount to absolute barriers to the advancement of over-represented groups; also, that the employer is permitted to take race and gender into account in making appointment and promotion decisions, but that it is not obliged to do, and hence that it may, in appropriate circumstances, make decisions that have the effect that over-representation of certain groups is not addressed immediately.

Detailed records of the circumstances resulting in maintaining over-representation for the time being must be kept. Such circumstances would need to tie in with the justifiable reasons that the Department of Employment and Labour (DoEL) would take into consideration where the sectoral targets are not met.  

Publication and retention

The EE Plan does not need to be submitted to the DoEL, and it is not a public document. However, it must be made available to a designated employer’s employees for copying and consultation and may need to be produced upon review by the Director-General or labour inspectorate. A copy of the EE Plan must be retained for at least five years after its expiry.

What must be submitted to the DoEL is the employment equity report.

Written by Talita Laubscher and Melissa Cogger, Partners and Chloë Loubser, Knowledge and Learning Lawyer, Bowmans South Africa